Playing with Maqasid

Since 2012-12-21

Ijtihad is closely associated with the aims and objectives of the Shari'ah (maqasid). When speaking about the conditions for making Ijtihad, Imam Al-Shatabi included at its forefront, "to be able to understand the goals of the Shari'ah in totality"

Shaqur Rehman and Nadeem Rehman

Ijtihad is closely associated with the aims and objectives of the Shari’ah (maqasid). When speaking about the conditions for making Ijtihad, Imam Al-Shatabi included at its forefront, ‘to be able to understand the goals of the Shari’ah in totality’1. Hence, with the advent of Ijtihad, it is incumbent upon the scholar to take into account the general goals and objectives of the Shari’ah while formulating rulings for a particular issue.
In actuality, one may find that Allah has not disclosed His aims and wisdoms in their entirety nor has He explicitly stated them with every commandment. Jurists throughout the ages have derived what they consider to be the aims or intent of the Shari’ah by attempting to create generalities under which they can fit the legislated rulings from the Qur’an and Sunnah. The goals of the Shari’ah can be ascertained in two main ways.
Firstly, the text reveals the intention and goal behind the action or ruling, as Imam Shafi says: ‘Whenever we find in the speech of the legislator that which shows that he has established it as a proof or sign, we rush towards it and it is the most deserving (path) to be traversed’2.
Secondly, by way of deduction from the (legal) texts, however, deducted objectives and goals must be found to be in harmony with the textual based objectives and goals, and thus, if there is no harmony between them, then such deduced goals are seen as being falsely or incorrectly established. This is what the Usooli (principles of jurisprudence) scholars have termed Al-Munasabah (harmonization), whereby the textual based goals are fundamentally judges over the deduced goals, just as the textual ruling is a judge over the deduced rulings3.
The objectives of the Shari’ah are generally established by way of Istiqra (gathering and following up the texts of revelation). Hence, to establish the fact that one of the goals of the Shari’ah is to preserve the religion itself, the scholar gathers up all of the textual proofs which indicate, explicitly and implicitly, that the Shari’ah regards this as an objective and at the same time he confirms the non-existence of a text which contradicts this goal. Hence, the scholar makes Ijtihad in finding the texts supporting him and makes Ijtihad when proving that there is no text which contradicts his principle.
Generally what has been agreed by scholars is that there are five main goals of the Shari’ah. These have been defined as universal matters which the Shari’ah was revealed to protect and preserve, namely; faith, life, intellect, posterity and wealth4.
Others have added to this list honour (‘Ird)5 and others added freedom and justice6. It is also worthy to note that a number of major philosophers of the democratic world; such as Locke and Mill, have also come to similar conclusions concerning what a law should aim at preserving and protecting7. In support of the agreed five universal matters Al-Gazali states: ‘Anything that preserves these five universal matters is considered good and a benefit, and anything that aids in their demise is an evil and removing this evil is good’8. This agreement is one based upon Istiqrah, i.e. it is an agreement in which there is no known opposition. What is meant by this is that after searching through the opinions of the scholars, no difference of opinion has been found in the matter. Such an agreement is not definitive. Ibn Taymiyyah states: ‘Ijma (agreement) is of two types; Qati’ (Definitive); It is not possible for this to be in opposition to a clear text, Dhani non-definitive (probable); it is an agreement of Iqrar or Istiqra, i.e. (Istiqra) after searching through the opinions of the scholars no difference of opinion has been found (on a particular matter), (Iqrar) or that a particular saying regarding a matter pertaining to the interpretation of the Quran becomes widespread and no one is known to have opposed it. This type of agreement, even though it can be used as a proof, cannot be used to negate a known text due to the fact that this evidence is dhaniyah (non-definitive), one cannot definitively believe in its correctness because one cannot definitively believe that there is no opposing view’9.
The Main Objective
The most important and undisputed aim of the Shari’ah is to realize the worship of Allah alone without partner, rival or equal and to submit sincerely to Him alone, as Allah stated:
{And I (Allah) created not the jinns and humans except they should worship Me (Alone).} [Adh-Dhariat 51:56].10
{وَمَا خَلَقْتُ الْجِنَّ وَالْإِنسَ إِلَّا لِيَعْبُدُونِ} الذاريات: 56
Transliteration: Wama khalaqtu aljinna waalinsa illaliyaAAbudooni
{And they were commanded not, but that they should worship Allah, and worship none but Him Alone (abstaining from ascribing partners to Him), and perform As-Salat (Iqamat-as-Salat) and give Zakat: and that is the right religion.} [Al-Bayyina 98:5].11
{وَمَا أُمِرُوا إِلَّا لِيَعْبُدُوا اللَّـهَ مُخْلِصِينَ لَهُ الدِّينَ حُنَفَاءَ وَيُقِيمُوا الصَّلَاةَ وَيُؤْتُوا الزَّكَاةَ ۚ وَذَٰلِكَ دِينُ الْقَيِّمَةِ} البينة: 5
Transliteration: Wama omiroo illa liyaAAbudoo Allaha mukhliseena lahu alddeena hunafaa wayuqeemoo alssalata wayutoo alzzakata wathalika deenu alqayyimati
Thus, all Ijtihad and progress must fulfill and enhance the fulfillment of this aim and not detract or cause regress in this regard. Everything in the Islamic Shari’ah which Allah has appointed to govern the life of man upon this earth, demands from man that he subordinate himself to the revelation and thus rise above his lowly base desires, freeing himself of slavery to men (and their desires) and making him a sincere servant of the Creator alone. This is not achieved by mere rituals but can only be realized when man takes the revelation as his guide and reference in all of his affairs12; when Allah is obeyed above all else and when this obedience is in accordance with what He Himself has prescribed. Allah conveyed his religion through His Messenger, and thus, the reality of Islamic law is complete submission and obedience to the Messenger13. If this is the main aim of the Shari’ah which has been stated unequivocally throughout the revelation then it can also be concluded that the main aim of Satan is the exact opposite, to disobey the Messenger’s commands and to create for mankind that which they can take as rivals who are presented to be equivalent or greater than Allah, thus Allah describes this action as the greatest sin14.
The Letter and Spirit of the Law
When discussing the uses of speech, the philosopher Thomas Hobbes (1651), cites four main uses: firstly, “to transfer our mental discourse into verbal,” secondly, “to show to others that knowledge which we have attained,” thirdly, “to make known to others our wills, and purposes, that we may have the mutual help of one another,” and lastly, “by playing with our words, for pleasure or ornament”15. Ibn Taymiyyah puts it very succinctly: ‘the wording is intended due to a meaning’16.
When trying to understand any normative law the primary method is to refer to the literal rule, interpret the statue literally according to its ordinary plain meaning.
‘The literal rules might be said to be the default position’17. This is why a great amount of time and care is taken in the phrasing of a law or statute to the optimum level of precision so that it conveys and encompasses all that is intended. It is strange that although this is common practice in the East and West, such practices in regards to Islam and the Shari’ah are labeled backward, fundamentalist and extremist. Is this because the literal interpretation (the plain meaning) is unpalatable to prevailing norms and allows little room for manipulation?
Allah is the most eloquent in speech and precise in conveying His intent. His words coupled with the authentic Sunnah form the basis of Law and Islam. There is unanimous agreement that the Qur’an and the authentic Sunnah are the two main reference points in every issue. In stark contrast, that which is known as ‘the spirit of the law’ (the aims of the shari’ah) are the result of human reasoning (Ijtihad) and are not fundamental pillars upon which the law is based. Instead, they are matters open to discussion, addition or deletion (as is apparent by the aforementioned difference on the precise number of Maqasid). Thus, they are not an independent Islamic source which stands at the same rank as the sources themselves such as the Qur’an and Sunnah18. If the Maqasid are not equal to the sources of Islam; the Qur’an and Sunnah, can they be given authority to override any part of those sources? Was the intent of deriving these Maqasid and this spirit to make them a moderator over the revelation?
The finite and deficient creation cannot encompass the infinite perfection and wisdom of its Lord. It is therefore not fitting that the intellect be the soul reference in deciding the intent of Allah. The revelation came to complete the intellect of man and strengthen it by providing a stable, constant and consistent framework within which to operate. The revelation on the other hand is not in need of being supported nor completed19. The perfect wisdom of Allah is better suited to prescribe the greatest benefit to mankind in all matters, and any explicit command or proscription from Him reflects this infinite wisdom. A command in the revelation to do something is nothing other than an explicit intent of the Shari’ah that is realized by enacting that order20. Thus, {Cut off (from the wrist joint) the (right) hand of the thief, male or female, as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise.} [Al-Ma’ida 5:38].21
{وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِّنَ اللَّـهِ ۗ وَاللَّـهُ عَزِيزٌ حَكِيمٌ} المائدة: 38
Transliteration: Waalssariqu waalssariqatu faiqtaAAoo aydiyahuma jazaan bima kasaba nakalan mina Allahi waAllahu AAazeezunhakeemun
Is an order to establish a legal aim which is to protect (possessions and) wealth which cannot be attained except by cutting the thief’s hand. It cannot be said that cutting the thief’s hand will cause harm to the perpetrator of the crime and this contradicts the preservation of life which is an aim of the Shari’ah, or that this punishment is not suited to a modern civilized society geared to preserving life and limb. This understanding completely removes Allah’s commands in achieving His intent; rather it contradicts those aims’22. Such a perspective and approach results in rendering the Shari’ah inconsistent such that it could never be from God the All-Wise.
It is preposterous that so called ‘evidence’ to support the notion of innovation and extending beyond the ‘literal’ dictates of revelation attempts to misconstrue an action of a companion such as Umar (radiya Allah ‘anhu); one who was famous for his precise execution of the letter of the law in all affairs, perhaps even for his stringency in doing so. The case in question is when he did not apply the prescribed punishment of cutting the thief’s hand during a time of famine. The reality of the matter, however, just proves Umar’s strict adherence to the letter of the law. In relation to this incident Ibn al-Qayyim relates the agreement of Imam Ahmad ibn Hanbal with Imam al-Awzaee regarding ceasing the cutting of hands in a time of famine: ‘this is pure analogy and what the principles of the Shari’ah demand. During a famine people are overcome by need and necessity, such that it is rare for a thief to be free of dire need for what will end his hunger. This is a doubt which prevents cutting (the hand) of the one in need and it is stronger than many of the doubts that the jurists mention’23. Umar understood that the cutting of the hand only applied where there was no doubt involved in the crime, a principle not only agreed upon by the Ummah from the time of the companions, rendering it mandatory to follow and obey24, but a principle that even exists in ‘progressive’ legislative systems today. In times of famine the struggle is to stay alive even if that means theft. Thus, establishing whether the theft was committed out of dire necessity or not would become mandatory so as to remove any doubt concerning applying the prescribed punishment. Dealing with the famine and removing the doubt around theft would allow the application of this commandment with certainty as required25. Umar (radiya Allah ‘anhu) showed clearly in his action how the revelation deals with the prescribed punishments in circumstances which force people to commit crimes. It was not the setting of a precedent but rather the application of what he learnt from the actions of the Prophet (salla Allah ‘alihy wasallam) in ascertaining the cause for committing the crime with certainty before applying the punishment. Also, it is important to note that Umar (radiya Allah ‘anhu) did not announce a moratorium publicly, or even a temporary one, but when the case was brought before him for judgment he ruled that the punishment of theft should not be executed due to doubt surrounding the crime26. The Prophet (salla Allah ‘alihy wasallam)ordered the Muslims to follow in the footsteps of the rightly guided caliphs; He said: “Hold firmly to my example (sunnah) and that of the Rightly Guided Caliphs” [Authenticated by Al-Albani],
«عليكم بسنتي وسنة الخلفاء الراشدين» صححه الألباني
So thus, what Umar did was already a divinely sanctioned implementation of the revealed law and as for those who come later then their Ijtihad does not have the same divine approval and authority.
It is not for the Mujtahid (the scholar who makes Ijtihad) to create or prescribe what is best for mankind27. His role is to apply what has been explicitly stated by the revelation; without contradicting it, to all circumstances and events.
Intellectual opinions and thought must work within the limits set by revelation and not attempt independence.
Such an attempt would lead to the denial of Islam in totality. The revelation sets explicit limits and boundaries for mankind. If the violation of these limits is allowed then the revelation has been rendered futile. In the words of Shatibi: ‘If the intellect is allowed to violate the limits set by revelation then there is no purpose of those limits. Since the aim was to set a limit, if it is allowed to go beyond that limit then the limit is useless, and this in the Shari’ah is batil’38.
When the aims of the Shari’ah are confined to five things: safeguarding faith, life, intellect, posterity and wealth, many ordainments and proscriptions are eliminated29. If the spirit of the law is confined to merely these five then the Shari’ah has not added anything new to the realm of legislation, in that intellectuals have arrived at what is similar to these five without messengers and revelation. If intellectuals have reached these aims independently and these comprehensively encompass what the Shari’ah has introduced, it could be argued, why not leave them to actualize these aims using what they deem to be appropriate? It could also be argued that it is thus possible to actualize these objectives with Islam and other than it as many philosophers and intellectuals have suggested30. The Shari’ah prescribes a very specific method in preserving these main aims and its method is sublime and achieves these goals better than any other approach. It is the divine nature of the Shari’ah and its method, fixed values and commandments that makes the Shari’ah unique and superior to all other laws. To allow a change in these methods based upon a perception of how best to achieve its aims and objectives renders the end product un-Islamic and will never achieve the alleged goal. However, the aim that such an approach does achieve is that of distorting Islam from within.
1. Muwafaqat 5/41
2. Ar-Risalah p.506
3. C.f. Abdul Qadir Bin Hirz ul-llah, Dhaabit I’tibar al-Maqasid p.59-60
4. Al-Muwafiqat 3/46, 3/210
5. [Ma’alim wa dawabit al-Ijtihad, 135]
6. [al-Khimlishi, Wijhat Nazar, 249 and Ma’alim wa dawabit al-Ijtihad, 141]
7. [John Locke (1690), Second Treatise of Civil Government, CHAP. II. Of the State of Nature; John Stuart Mill, On Liberty (1859)]
8. Al-Mustassfa p.251
9. Majmu al-Fatawa 19/267-268
10. [51 :56]
11. [98: 5]
12. [al-Ubodiyah 38, 43; Al-Khadimi; al-Ijtihad al-Maqasidi, 2/27]
13. “… whatsoever the Messenger gives you, take it, and whatsoever he forbids you, abstain (from it) , and fear Allâh. Verily, Allâh is Severe in punishment” [59: 7], “He who obeys the Messenger, has indeed obeyed Allâh, but he who turns away, then we have not sent you (O Muhammad) as a watcher over them” [4: 80]
14. [Luqman: 13]
15. Hobbes, T., Leviathan (The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil), 1651, In Chapter 4 of Book I, a chapter entitled “Of Speech”
16. Ibn Taymiyah, al-Marrakishiyah, p. 34
17. Legislation or statutory laws (Acts of Parliament),
18. [al-Khadimi, al-Ijtihad al-Maqasidi, 1/135-149]
19. [Al-Miyli: Zhahirat al-yasaar al-Islami, 126-128]
20. [an-najjaar, Khilafah al-Insaan bayn al-Wahy wal-’Aql, 93]
21. [5: 38]
22. [an-najjaar, Khilafah al-Insaan bayn al-Wahy wal-’Aql, 94; Shatibi, al-Muwafaqaat, 2/93, 2/290]
23. I’lam: 3/23
24. [Al-Qaari, Ali ibn Sultan Muhammad, Murqaah al-Mafaateeh, dar al-kutub al-’Ilmiyah, Lebanon, Beirut, 2001, 7/145]
25. As-Sawi: Qadiya Tatbiq al-Shariah, p. 29; al-Qardawi: Al-Ijtihad, hawliyah kuliyah al-Shariah wa al-Dirasat al-Islamiyah, Qatar, 10: (1412 AH-1992 CE), 34-40.
26. Al-Buti, Muhammad saeed, Dawabit al-Maslaha Fi al-Shariah al-Islamiyah, Beirut: Muasasah al-Risalah, Ed. 4, 1402 AH -1982 CE) p. 145
27. [ad-dariny, dirasaat wa buhooth fi fikr al-Islami 1/7]
28. [al-Shaatibi, al-Muwafaqaat 1/87]
29. [ibn Taymiyah, al-Fatawa: 23/234]
30. [al-Miliy, Zahirat al-Yasaar al-Islamiy, 149]
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